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U.S.S.Ct. – mens rea requirement for online threats

Today (June 1, 2015) the U.S.S.Ct. reversed and remanded the conviction in Elonis v. United States. Anthony Elonis, using the pseudonym “Tone Dougie,” posted on Facebook rap lyrics he wrote “containing graphically violent language and imagery concerning his wife, co-workers, a kindergarten class, and state and federal law enforcement.” Although “Tone Dougie” posted disclaimers that the lyrics were “fictitious” and not intended to depict real persons, the persons depicted in the lyrics felt otherwise. Elonis was arrested and charged with five counts of violating 18 U. S. C. §875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.”

Count Two was based on this:

“Hi, I’m Tone Elonis. Did you know that it’s illegal for me to say I want to kill my wife? . . . It’s one of the only sentences that I’m not allowed to say. . . . Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife. . . . Um, but what’s interesting is that it’s very illegal to say I really, really think someone out there should kill my wife. . . . But not illegal to say with a mortar launcher. Because that’s its own sentence. . . . I also found out that it’s incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you’d have a clear line of sight through the sun room. . . . Yet even more illegal to show an illustrated diagram. [diagram of the house]. . . .”

Elonis was convicted based on the prosecution’s theory that the postings were threats if viewed as such by a reasonable person. Elonis had requested an instruction that “the government must prove that he intended to communicate a true threat” but the court denied it. In reversing, the U.S.S.Ct noted that the statute was silent as to mens rea but when this is the case, “we read into the statute ‘only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’ Carter v. United States, 530 U. S. 255, 269 (2000).”

The bottom line: Section 875(c)’s mental state requirement is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat.